Mckee v Mckee,

• Judge: Kellock J.,Cartwright J.
• Docket Number: Case No. 72
• Date: 06 June 1950
• Court: Supreme Court (Canada)

Canada, Supreme Court.

(Kerwin, Taschereau, Kellock, Estey, Locke, Cartwright, and Fauteux JJ.)

Case No. 72

McKee

and

McKee.

Aliens — Treatment of — Equality before the Law — Child Brought to Canada to Escape Execution of a Valid Decree as to Custody by a United States Court — Whether a Canadian Court has the Right to Re-Hear the Issue of Custody — Position of Aliens before Canadian Courts.

The Facts.—Mr. and Mrs. McKee were married in 1933. They were both American citizens and had always lived in the United States. A son was born to them in 1940, but a few months later the couple separated. They entered into a separation agreement which stated, inter alia, that neither parent was to remove the child from the United States. In 1942 the husband was granted a divorce by the Superior Court of California in the County of Los Angeles. Custody of the child was awarded to him, though the boy was to spend three months a year with his mother. Further application was made to the same Court by Mrs. McKee in 1945, and full custody of the child was granted to her, with a reasonable right of visitation on the part of the father. Mr. McKee carried an appeal to the Supreme Court of California, but no alteration in the new Order was granted. This Order, because of the legal proceedings, only came into force in January 1947.

In December 1946 Mr. McKee heard of the failure of his appeal; so he moved to Ontario, in Canada, with the child. His former wife neither knew of, nor consented to this move. When she discovered what had happened she commenced habeas corpus proceedings in Ontario.

When the case eventually came up for trial, the point at issue was: “Who is to have custody of the infant, Terry Alexander McKee, as between the said Evelyn McKee and the said Mark T. McKee?” It was argued by Mrs. McKee that custody should be awarded to her in compliance with the decree of the Californian Court. The child had been taken out of the valid jurisdiction of that Court, so as to deny her her lawful right to custody. Wells J., in the Court of First Instance, felt, however, that he was bound to investigate the matter at length, and that the Californian judgment carried no more than persuasive weight in Canada. In the final event he granted custody to the father. The mother took the case to the Ontario Court of Appeal, and, failing there, she appealed to the Supreme Court of Canada.

Held (by the majority, Kerwin, Estey, Locke and Cartwright JJ.; Taschereau, Kellock and Fauteux...